In this nonpayment proceeding, the record establishes that the parties had contemplated the possibility that the repairs they had agreed to undertake, with landlord paying for labor and tenant paying for parts, might not be successful and that in such event, tenant could terminate the lease early thereby relieving each other from any further obligations pursuant thereto. However, rent for the month of March is owed to landlord since tenant did not vacate the premises until March 31. Moreover, even if there had been a breach of the lease by landlord, tenant's duty to pay March rent was not suspended since there was no express provision in the lease declaring the circumstances under which the tenant may withhold rent ( Westchester County Indus. Dev. Agency v. Morris Indus. Bldrs., 278 AD2d 232; 3 Rasch, New York Landlord and Tenant-Summary Proceedings § 43:31 at 128 [4th ed]) and a defense of constructive eviction is not available to a tenant who continues to occupy the demised premises ( see West Broadway Glass Co. v. I.T.M. Bar, 245 AD2d 232). In view of the agreement between the parties to terminate the lease, there is no basis to award tenant damages for relocation expenses and loss of business. As to the portion of the counterclaim relating to the reimbursement costs incurred to repair the "septic and water system," the record establishes that tenant agreed to pay for said expenses pursuant to the lease extension entered into in January 2002. The expenses incurred in defending the criminal proceeding cannot be recovered since the evidence adduced at trial established that landlord provided tenant with a "drywell and drywell pump" in good working order pursuant to the original lease and that it was the over use of the system by tenant that resulted in the criminal proceeding commenced against it.
It is noted that while landlord continues to hold the security deposit, tenant did not assert a counterclaim for said deposit which, in any event, would have exceeded $3,000 (UJCA 208). However, tenant is not without a remedy as it can commence a plenary action to recover the security deposit.
In view of the foregoing, we pass upon no other issue raised on appeal.